URBAN BY URBAN v. JEFFERSON COUNTY SCH. DIST. R-1, Civ. A. No. 93-S-908.

• Citation: 870 F. Supp. 1558
• Decision Date: 03 December 1994
• Docket Number: Civ. A. No. 93-S-908.
• Parties: Gregory G. URBAN, by Ronald and Janice URBAN, Plaintiff, v. JEFFERSON COUNTY SCHOOL DISTRICT R-1, Defendant.
• Court: United States District Courts. 10th Circuit. United States District Court of Colorado

870 F. Supp. 1558

Gregory G. URBAN, by Ronald and Janice URBAN, Plaintiff, v. JEFFERSON COUNTY SCHOOL DISTRICT R-1, Defendant.

Civ. A. No. 93-S-908.

United States District Court, D. Colorado.

December 3, 1994.

COPYRIGHT MATERIAL OMITTED

William R. Baesman, Gorsuch Kirgis, LLC.

Gerald A. Caplan, Alexander Halpern, Susan S. Schermerhorn, Alan J. Canner, Caplan and Earnest, Boulder, CO.

MEMORANDUM OPINION AND ORDER

SPARR, District Judge.

THIS MATTER comes before the Court on the Defendant's motion for summary judgment, filed January 18, 1994. Plaintiff filed his response to the motion on February 14, in which he moved for summary judgment on his seventh claim for relief. This Court heard oral argument on these motions on May 6, 1994. After oral argument, the Court submitted to counsel questions for further briefing. The Court now makes the following Order.

This action is brought pursuant to the Individuals with Disabilities Education Act ("IDEA"), at 20 U.S.C. § 1415(e)(2), the Americans with Disabilities Act ("ADA") at 42 U.S.C. § 12101-12213, the Rehabilitation Act, at 20 U.S.C. § 794, and 42 U.S.C. § 1983. Plaintiff Gregory Urban ("Gregory") seeks injunctive relief. As stated in a previous order entered in this action, this case involves claims arising out of the Defendant's refusal to place the Plaintiff at the high school of his choice. The claims remaining are the first, second, third, fourth, fifth, and seventh claims for relief. The sixth and eighth claims of the second amended complaint were dismissed by Judge Finesilver on December 27, 1993, and he denied the Plaintiff's motion for preliminary injunction on August 12, 1993. This case was transferred to the undersigned judge on February 23, 1994. Gregory, through his parents, seeks relief for the Jefferson County School District's alleged violations of the IDEA, the ADA, the Rehabilitation Act, and for violation of civil rights pursuant to 42 U.S.C. § 1983. He has requested (among other things) injunctive relief to compel his placement at Evergreen High School and implementation of community-based education and transitional services in Evergreen, as well as injunctive relief entitling him to compensatory education after age twenty-one for the period of time during which he was denied a free appropriate education pursuant to the IDEA.

Background

Under the IDEA, 20 U.S.C. § 1415(e)(2), an IDEA decision of a state educational agency can be appealed in federal court.¹ The disputes in this case revolve around where Gregory will receive his education and training which are designed to assist him in acquiring skills to live independently. The Defendant contends that his educational placement at Golden High School (in the nearby community of Golden) is appropriate, while his parents argue that he should receive all elements of his educational and training services in the community in which his family lives — Evergreen, Colorado.

Fairly extensive factual findings were made in Judge Finesilver's order of August 12, 1993, in which he denied Plaintiff's motion for preliminary injunction. These fact findings, as well as those of the Administrative Law Judge in his order of February 19, 1993, will not be disturbed by this Court. The Court will, for the purposes of this order, simply reiterate some relevant facts. Plaintiff Gregory moved to this state with his family in November 1991. He and his family reside in Evergreen, located in unincorporated Jefferson County and within the Defendant school district. Since his arrival in the school district, he has attended Golden High School (a high school he would not attend were he not disabled) and has participated in the "Challenge Program" there. The Challenge Program is designed to provide education and support services to children with relatively severe disabilities. This program serves less than 1% of the total student population, and it is designed to provide the most intensive special education services in order to obtain some educational benefit. Testimony of Robert Fanning, Impartial Hearing Officer transcr. at 591. Gregory apparently functions overall at the level of a two- to three-year-old. He is presently 19 years of age. As part of the Challenge Program, Gregory has participated in jobsite training, known as "shadowing," where he has done floor sweeping and vacuuming at a Pizza Hut (in Golden) and has delivered newspapers for the Golden Transcript. At Golden High School Gregory also participates in "P.E. Plus," an adaptive physical education program. Neither the Challenge Program nor the P.E. Plus program is offered at his neighborhood high school, Evergreen High School. There are three types of special education programs at Evergreen High School, but because the District has identified Gregory's disabilities as "trainably mentally handicapped," he is not eligible for participation in Evergreen High School's programs (its programs appear to be limited in scope to children identified as "educably mentally handicapped").

Sixty percent of Gregory's program is implemented in Golden or Golden High School. Approximately thirty percent of his weekly program is spent in regular education classes at Golden High, where he is accompanied at all times by a one-on-one teaching assistant. The rest of his time in Golden is divided between special education programs (the Challenge Program) and other educational services in that community. The remaining forty percent of services are provided in Evergreen by a one-on-one teaching assistant (where he does not attend either regular or special education classes). The Challenge Program, as well as the jobsite training and any related transitional services Gregory might receive, are designed to prepare him for the world beyond the school setting. Gregory's parents are understandably concerned that he become integrated in his home community of Evergreen, as opposed to Golden, and that the level of skill transferability regarding his jobsite training and other activities will not translate from the Golden setting to the Evergreen setting. Plaintiff's parents assert, among other things, that the District's decision to transport him to Golden denies him the opportunity to make friends in his own community through relationships and classes at Evergreen High.

The Plaintiff's complaint presents some claims of first impression which involve the interplay between Title II of the ADA (under which the Plaintiff asserts he has a right to reject education and services at Golden High School and the right to choose delivery of such education and services at Evergreen High School) and the statutory constructs of the IDEA and § 504. The claims remaining are as follows:

1) Gregory has the right, as a matter of law, to be placed at Evergreen High School;

2) Gregory's placement in the Challenge Program was improper because his Individual Education Program did not specifically require such restrictive placement (34 C.F.R. § 300.552(c));

3) Gregory is entitled as a matter of law to have his transition services focused on his post-school environment of Evergreen 4) The Impartial Hearing Officer and Administrative Law Judge erred by ordering a new IEP staffing and not directing Gregory's placement at Evergreen High School (the location of transition services should be Evergreen, therefore the educational placement there is also appropriate);

5) Defendant's refusal to provide transitional services to Gregory in Evergreen (and apparently also educational services) and its requirement that Gregory attend the Challenge Program and some transitional programs in Golden amount to discriminatory practices in violation of the ADA and 42 U.S.C. § 1983; and

7) Defendant refused to develop an appropriate IEP including a statement of transition services and provision for an extended school year until May 4, 1993, and thereby knowingly denied benefits and services in violation of the IDEA, the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983.

The Court will now examine Plaintiff's claims relative to these statutes.

I. Statutory Framework

A. The IDEA

Consideration of the Plaintiff's claims requires interpretation of a dense complex of federal and state statutes and regulations. An overview of the IDEA is thus in order. The IDEA, formerly known as the Education for All Handicapped Children Act, provides federal money to state and local agencies for the education of children with disabilities to ensure they are given

a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist States and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children.

20 U.S.C. § 1400(c). It conditions federal funding on compliance with certain goals and procedures. 20 U.S.C. § 1412. The statute's primary purpose of providing a free appropriate public education ("FAPE") is achieved through the development of an individualized education program ("IEP"), tailored for each child with a disability. 20 U.S.C. § 1401(a)(18)(D).

In Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the Supreme Court examined the issue of what is meant by the term "free appropriate public education" (FAPE), is well as what the role of courts is in exercising review under § 1415 of the IDEA. 458 U.S. at 186, 102 S.Ct. at 3040. That decision held that the statutory definition of FAPE, in addition to requiring the states to provide each child with specially designed instruction, expressly requires the provision of such supportive services as may be required to assist a handicapped child to benefit from special education. 458 U.S. at 201, 102 S.Ct. at 3048. It also noted, that the requirement that a state provide specialized educational services to...